Friday, June 29, 2018

F.A.N. Newsletter

Some of our readers were puzzled yesterday by FAN NZ
broadcasting the Supreme Court verdict on fluoridation as a victory rather than
a defeat. After all the Supreme court ruled against the plaintiffs (New Health New Zealand) in their efforts to
prevent South Taranaki from fluoridating its water.

Let me explain, inmy view, this is a
classic case of losing a battle but winning the
war.

In this case, the war is over the ethics
of fluoridation. For opponents of fluoridation, this practice violates the
individual's right to medical or human treatment. For proponents the
counter-argument has been that fluoride is not a medicine and fluoridation is
not a medical treatment. Proponents further argue that even if fluoride was a
medicine people are not forced to drink the fluoridated water.
In the following two paragraphs (99 and
100) in the Supreme court ruling it is clear that the judges side with
opponents on this matter and this finding will have huge ramifications
worldwide. In other words it is a huge victory for us. Meanwhile, proponents will celebrate their local
victory.

[99]

Applying
this approach, we find that fluoridation of drinking water is the provision of
medical treatment. It involves the provision of a pharmacologically active
substance for the purpose of treating those who ingest it for dental decay. We
agree with the Courts below that people who live or work in areas where
fluoridation occurs have no practical option but to ingest the fluoride added to
the water. So

the
treatment is compulsory. While drinking water from a tap is not an activity that
would normally be classified as undergoing medical treatment, we do not consider
that ingesting fluoride added to water can be said to be qualitatively different
from ingesting a fluoride tablet provided by a health
practitioner.

[100]

We
conclude that fluoridation of drinking water requires those drinking the water
to undergo medical treatment in circumstances where they are unable to refuse to
do so. Subject to s5, therefore, s11 of the Bill of Rights Act is
engaged.

To see how that local victory was won you
will have to read the paragraphs 101 - 144 in the ruling. But basically, they
argue that the individual right to informed consent to medication (section 11 of
the NZ Bill or Rights) may in certain circumstances be over-ridden by the
interests of the larger community (see section 5). However, the judges somewhat
undermined these arguments by earlier acknowledging in paragraph 10 that the
benefits of fluoridation are largely topical, and as such allowing individuals
the right to informed consent in this case would not deprive the rest of society
of fluoride's perceived benefits since there is universal access to fluoridated
toothpaste.
Another important point is that when the
issue was being heard the US-government funded study by Bashash et al., 2017 had
not been published. Had the judges known about this important and rigorous
study, it is questionable whether they would they have felt it was in the
interests of the larger community to support a practice which would lower the IQ
of its children?

Most of
you will have heard that the Supreme
Court made a Ruling on the
Appeal by New Health New Zealand. This Appeal resulted in two judgments. The
second one (NSC60) held that whether or not fluoridation chemicals should come
under the regulations of the Medicines Act was moot, as Medsafe had been given
an exemption for fluoridation chemicals if they are added to the drinking
water.

The first
one (NSC59) dealt with whether or not councils had a legal right to add
fluoridation chemicals to the drinking water. Chief Justice Sian Elias said they
didn't, but the other four judges thought they did. However, the important point
for us is that all judges, except Judge William Young, ruled that fluoridation
was a medical treatment, and that if a person lives or works in a fluoridated
area it is compulsory medication and therefore it breached Section 11 of the
Bill of Rights Act. Section 11 - "Everyone has the right to refuse to undergo
medical treatment".

So why
does this not make fluoridation illegal? The judges then went on to look at
Section 5 which is about "Justified limitations" and says "Subject
to section
4, the rights and freedoms contained in
this Bill of Rights may be subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society." Section
4 is about "Other Enactments" which says that other laws override the Bill of
Rights. But two of the judges argued that fluoridation was justified under
Section 5. They say they are not able to weigh up the benefits and risks, so
they rely on the Ministry of Health and the World Health Organization, who say
there are benefits and no risks. One judge ruled that this was a balancing that
each decision maker had to make at the time, potentially taking local
circumstances into account. But all three agreed the balancing question needed
to be addressed.

So we are
back to everyone, including the highest court of the land, allowing fluoridation
because the Ministry of Health and the World Health Organization say it's okay.
This is in spite of the fact that most of the world does not practice
fluoridation - even though the WHO says it is good - and the decision makers in
the Ministry of Health are a handful of people who have been promoting
fluoridation most of their professional careers, so are unlikely to change their
mind.

Where
does that leave us? The fact that the Supreme Court has ruled that fluoridation
is compulsory medical treatment means the proponents can never again spin the PR
line that they are "just topping up the natural levels". Hallelujah! Thank you
New Health New Zealand for initiating this great leap forward. It also leaves us
where we were before, in that we need hundreds of thousands of New Zealanders to
understand this issue - so the few policy advisors within the Ministry of Health
can no longer wield such great power so irresponsibly